It's important that we understand what the Bush Administration has done here, because they've done it in a sneaky, underhanded, and almost invisible way. We need to start with some basic concepts. I am indebted to two diaries by Cedwyn (here
) and a previous diary by Rusty1776
, as well as sources such as Sen. Patrick Leahy, whom I quote in my previous diary
on this subject, and to a great blog post by Sarah R. Carter on her father's Senate campaign website
The National Guard:
First, and most basically, because it confuses some people: each state (and territory, and D.C., but we'll ignore those for this discussion) has its own "National Guard." As with the concept of "federalism," which refers to the power that the states retain despite the existence of a federal government, this name can be misleading. The National Guard belongs to the states, not to the Federal Government, except with the governor's agreement or under certain specified conditions. The National Guard is the Governor's muscle.
The Posse Comitatus Act:
"Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both."
What that means is that the federal government can't use federal troops -- or federalized state troops (which is what this outrage is about) -- as a national law enforcement posse to enforce the law, except under certain exceptions. You probably already know the term for putting an area under military law enforcement control: it's called "martial law." Now, a Governor can declare martial law in an emergency under terms that vary by state. You saw an example of that when Gov. Blanco declared martial law in parts of Louisiana during Hurricane Katrina. But a President can only federalize troops for such use under exceptions specified by law. Where do you find those?
The Insurrection Act:
You find them in the Insurrection Act. This was invoked, for example, in Arkansas in the 1950s when President Eisenhower controversially nationalized the Arkansas National Guard over the objections of that state's Governor and directed them to enforce the law ending mandatory school segregation. He argued that the state's refusal to follow the federal law constituted an insurrection against the federal government.
Well, OK, you might say, I can see giving the power to nationalize a state's National Guard in that situation, even if the governor objects. They were defying federal law. That's not such a bad exception.
Right. But guess what just got amended? This small exception is now a gaping hole.
Here's what happened.
You can see my previous diary for Sen. Patrick Leahy's September 19 statement on what the legislation then before Congress would do. The Fiscal Year 2007 Defense Authorization Bill was envisioned as a bill that would strengthen the National Guard. With a sick sense of irony, the Bush Administration gutted this provision and replaced it with a "body snatcher" provision that represented "a sizable step toward weakening states' authority over their Guard units." The provision "mak[es] it easier for the President to declare martial law, stripping state governors of part of their authority over state National Guard units in domestic emergencies."
Here's an explanation for what this law does; the citation for which I'm omitting:
When the President invokes section 333 of chapter 15, he may involuntarily call to active duty members of the reserve components (not more than 200,000 Select Reserve and Individual Ready Reserve, of whom not more than 30,000 may be Individual Ready Reserve) for up to 365 days to conduct law enforcement activities in a disaster, accident, or catastrophe area and, if such incident involves a terrorist or WMD threat or attack, other response activities. In addition, the President may involuntarily call to active duty members of the reserve components to provide supplies, services, and equipment to persons affected by the disaster, accident, or catastrophe. As soon as practicable after invoking section 333 of chapter 15, the President must notify Congress of his determination to exercise this authority. However, within 24 hours of involuntarily calling to active duty members of the reserve components, the President must submit to Congress a report, in writing, setting forth the circumstances necessitating this action and describing the anticipated use of these members.
Alberto Gonzales could drive a tank through the vague language you see up there.
They did this in a very subtle way. It's hard to notice unless you're looking for it.
* Section 522 (House section 511) extends from 270 days to 365 days
the period for which the Selected Reserve and Individual Ready Reserve may be involuntarily called to active duty.
* Section 1076 (Senate section 1042):
o Amends the "Insurrection Act" (i.e., Chapter 15 of title 10, U.S. Code) by:
§ Changing the title of chapter 15 of title 10, U.S. Code) from "Insurrection" to "Enforcement of the Laws to Restore Public Order";
§ Changing the title of section 333 of chapter 15 from "Interference with State and Federal Law" to "Major Public Emergencies; Interference with State and Federal Law";
§ Clarifying the President's authority, under section 33 of chapter 15, to use the armed forces, including the National Guard in Federal service, without a request from a State governor, to restore order and enforce Federal laws in cases where, as a result of a terrorist attack, epidemic, or natural disaster, public order has broken down; and
§ Including those who are obstructing the laws to the existing requirement for the President to issue a proclamation ordering insurgents to disperse and retire peaceably to their abodes within a limited time.
o Amends Chapter 152 of title 10, U.S. Code, to authorize, with certain limitations, the President, in any situation he determines to exercise the authority provided in section 333 of chapter 15, to direct the Secretary of Defense to provide supplies, services, and equipment (e.g., food, water, utilities, transportation, search and rescue, medical care, and other assistance necessary to save lives and property) to persons affected by the incident.
o Amends section 12304 of title 10, U.S. Code, eliminating the limitation imposed on the President's authority to involuntarily call to active duty members of the reserve components to perform law enforcement and other duties in response to serious natural or man-made disasters, accidents, or catastrophes to only those incidents involving terrorist or weapons of mass destruction threats or attacks.
So now the President can send troops from Tennessee to quash what he deems a threat to civil order in Oregon, even if the governors of Tennessee and Oregon both object.
This, by the way, is how the Chinese - whose approach to government and party building Bush seems so much to admire - broke up the protests in Tienanmen Square. They brought in troops from the provinces who knew nothing about what the protest was about, but knew that if they were ordered to shoot, they had to shoot.
Such small changes to the law. Such a huge result. Imposition of federal martial law, using state troops, over the objection of the states.
What can you do?
You can make noise.
No - you can make a LOT OF NOISE.
Write letters to the editor. Call your representatives in Congress and make them pledge to rescind these changes. Call the offices of Senator Harry Reid's and Rep. Nancy Pelosi.
This is an issue on which the most rock-ribbed conservatives, the most ardent populists, the staunchest libertarians, and the most committed liberals ought to be able to agree. Even non-Democrats are looking for any excuse now to reject Bush and his fawning supporters. This is as big and fat an excuse as one could want. Bush and his flying monkeys are politically weakened now. We can beat them.
We can't give this measure of power to the President. Power corrupts.
And we can't give this measure of power to THIS President, who is already corrupted.
Our Founding Fathers anticipated and dreaded this moment. Their last line of defense is you. It's your Constitution. Make some noise. A LOT OF NOISE.
(1) Call Members of Congress AND Governors. Most of them still don't know that they were bamboozled like this because they don't know that the "Reserve" legally includes the National Guard.
(2) Call any members of the National Guard you know, and their families.
(3) Let's put this on Redstate, etc. On these sorts of Federalism questions, the decent ones among them can be our allies. This may be enough to shake them away from Bush and his enablers, just this once.
More action items to come as they develop.
OFF-TOPIC UPDATE: The diary about the brave and wonderful Iraqi blogger Riverbend looks like it is about to scroll off the rec list after a nice long run. If you haven't yet read it, please do.
Comment update 1: There are many strong comments here worth our collective attention, but there's one that is critical for everyone to read: Morrigan's comment on the Perpich decision's conclusion in 1990 that National Guard members are simultaneously part of a federal National Guard.
Comments are closed on this story.